Fernandez v. Schweiker, 1260

• Decision Date: 05 May 1981
• Docket Number: D,No. 1260,1260
• Citation: 650 F.2d 5
• Parties: Laura FERNANDEZ, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee. ocket 81-6045.
• Court: U.S. Court of Appeals — Second Circuit

Page 5

650 F.2d 5

Laura FERNANDEZ, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human

Services, Defendant-Appellee.

No. 1260, Docket 81-6045.

United States Court of Appeals, Second Circuit.

Argued April 16, 1981.

Decided May 5, 1981.

David Goldfarb, New York City (Stuart Miller, The Legal Aid Society, New York City, of counsel), for plaintiff-appellant.

John S. Martin, Jr., U. S. Atty., S. D. New York, New York City (Jane E. Booth, Michael H. Dolinger, Asst. U. S. Attys., New York City, of counsel), for defendant-appellee.

Before KAUFMAN and KEARSE, Circuit Judges, and WEINSTEIN, District Judge. ^*

WEINSTEIN, District Judge:

Claimant Laura Fernandez was awarded Supplemental Security Income disability benefits in November, 1975 on the ground of "Anxiety Hysteria." In June, 1978 she was informed that the Secretary no longer considered her eligible for benefits as of May, 1978, thus entitling her to benefits only through July, 1978.

A hearing before the administrative law judge was held in May of 1979 at which Fernandez appeared pro se, accompanied by her husband and with the assistance of a Spanish-speaking interpreter. The administrative law judge affirmed the Secretary's decision. Claimant appealed to the District Court which denied plaintiff relief. She now appeals from the order of the District Court.

That order should be reversed and the case remanded to permit the taking of additional evidence. The administrative law judge improperly relied on the report of one of the examining psychiatrists without calling him to testify or informing the claimant of her right to do so and without making further inquiry respecting the claimant's testimony that the doctor had made an inadequate examination and was mistaken in factual and opinion matters.

Claimant, now 34, was born in Puerto Rico and attended school through approximately the eighth grade. She was married in 1975 and has three children, 9, 5 and 3. Her only work experience is as a sewing machine operator from 1963 to 1965. In 1975, when she was found to be suffering from a disabling condition, medical reports from Marianne Makman, M. D. and William W. Pike, M. D. indicated that she was an "anxious, tearful, depressed woman" chiefly concerned with avoiding further pregnancy and reporting difficulties in controlling her children and her own feelings and impulses. She had attempted suicide. Dr. Makman diagnosed her at that time as a "Depressive Personality with severe anxiety attacks" and Dr. Pike concluded that she was suffering from "Anxiety hysteria, severe in a fragile, hysterical personality with suicidal ideation and obsessive fears."

At the administrative hearing in 1978 claimant was found no longer to be under a disabling condition preventing her from engaging in substantial gainful employment. The administrative law judge had before him the reports of a social worker, an internist and three examining psychiatrists which plausibly could have been interpreted as supporting disability, but might arguably have been construed as some evidence to the contrary.

Among the psychiatric reports was one indicating lack of a disabling condition. Dr. Jose M. Herrera reported, among other things, claimant took "complete care of her apartment, doing the cooking, ironing and washing for her family," and that she "goes shopping, watches television, reads the newspapers and enjoys listening to the radio." He diagnosed her as presenting an "Inadequate Personality" and reported that she had come to the interview using public transportation and unaccompanied. He also stated that "(h)er relatedness to other (sic) is poor, patient being very defensive and guarded against any threat to her present status" and that "(h)er tolerance to stress is diminished, patient being prone to explosive and hystrionic (sic) behavior." (Record 105).

The administrative law judge's conclusion relies heavily on Dr. Herrera's report:

The Administrative Law Judge concludes that based on the evidence and testimony that the claimant does not have a severe impairment. She is able to take care of her household, do her shopping and use public transportation. She enjoys reading, watching television and listening to the radio. These are not the symptoms of a severely mentally disturbed individual (Record 18).

Claimant argues that such reliance, in the absence of live testimony and cross-examination, was improper because of doubts raised during the hearing regarding the report's probative value. She argues that the administrative law judge, on the basis of information provided him at the hearing concerning possible irregularities in Dr. Herrera's examination, should have called him to give live testimony at the hearing or should have excluded his report from consideration.

The claimant raised the following objections to Dr. Herrera before the administrative law judge (Record 28-30):

that his office was actually an animal hospital.

that Dr. Herrera had made only the most cursory of examinations.

that claimant's husband had accompanied plaintiff to the Herrera interview and had in fact driven her there in a car borrowed from a friend, contrary to Dr. Herrera's statement in his report that she arrived unaccompanied via public transportation.

The district judge apparently obtained the results of an investigation indicating that Dr. Herrera was not acting improperly (Record 127 n.*). This is an inquiry that the administrative law judge should have undertaken, subject to challenge and confrontation by the claimant.

The reports of the other two psychiatrists from 1978, which were also before the administrative law judge, were based on substantial contact with claimant. They differ substantially in tone from Dr. Herrera's.

Dr. Marianne Makman described the claimant as experiencing great difficulty in mastering regular care of her house and children, as finding life "chronically overwhelming and bewildering," as easily losing control, and as "occasionally requir(ing) a homemaker." This report also noted that claimant has responded "reasonably well" to support staff help and to Valium (Record 107).

Dr. Hugo M. Morales indicated that the claimant was able to cook and keep the house clean; she was capable of using public transportation although she preferred to be accompanied; she depended a great deal on her husband and was always "worried at home." He also reported that she said during their interview that she felt like killing her son Daniel at times. "Patient appeared to be extremely depressed, somewhat caught in between her duties as a mother and her inadequacy and desire to go out and never come back." He described her prognosis as guarded, and diagnosed her as suffering "Depressive Disorders" (Record 100).

A hearing examiner is entitled, under normal circumstances, to rely on the written medical reports of experts who have examined a claimant; he is not required to call reporting physicians to testify where the claimant has failed to exercise her right to subpoena them under 20 CFR 404.926. Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1428, 28 L.Ed.2d...